Finding the way?

In the second of two summaries of recent cases concerning easements, Emma Humphreys reports on a local authority’s failure to show that use of the right of way had been with its permission.

In the case of Matthews v Herefordshire Council [2011] EWLandRA 2010/0056 the adjudicator found that a barn enjoyed a right of way for residential purposes arising from the fact that it had previously been part of a larger dominant tenement which included a residential farmhouse.

Noting that the council had failed to take any substantive action to enforce its view that the applicants were trespassers, the adjudicator concluded that there had been insufficient efforts to interrupt the use so as to show user by force.  

Facts

The applicants owned and occupied Foxhalls Barn. The applicants had acquired the barn in 1988 by way of a Conveyance which included a right of way over a specified track to the extent “hitherto…exercised by the Vendor and his predecessors in title for the benefit of the said property”.

This track gave the only means of vehicular access to the barn and, for much of its length, to a nearby farmhouse. The Conveyance was supported by a Statutory Declaration made by the vendor, who declared that the track had been used since at least 1954 “as of right” for all purposes connected with the barn. Following the applicants’ acquisition of the barn, they converted it from agricultural to residential use.  

The track is part of Brinsty Common, an unregistered title owned by the respondent council. As a result of the decision in Hanning v Top Deck Travel (1993) 68 P&CR 14 (where it seemed – until the decision was overturned by the House of Lords - that prescriptive rights of way could not be acquired over common land because such use was illegal), the council decided to regulate vehicular access and parking by residents living on council-owned common land – by granting formal easements at nominal cost to parties who could establish at least 20 years’ use and considering other cases on their merits.

The council wrote to the applicants about this possibility in 2000 and negotiations for the grant of a “formal easement” initially proceeded amicably. However, discussions broke down when the council discovered that the barn had only been used for residential purposes since around 1988/1989 and claimed that the applicants had not acquired a prescriptive easement because of the lack of 20 years’ use for residential purposes.  

In 2010, the applicants applied to register a right of way across the track referred to in the Conveyance, based on 20 years’ use from 1989. The respondent objected to the application, claiming that the use of the right of way had been with its permission because it had written to the applicants in October 2001 to confirm that it would not prevent them from accessing their property.

The dispute was referred to the Land Registry’s Adjudicator.

Decision

The adjudicator referred to evidence which indicated that the barn and nearby farmhouse had originally been part of a single title until the mid-1970s and he stated that he did not feel bound to consider only the applicants’ use of the track since 1989.

In assessing whether the track had been used “as of right”, the adjudicator concluded from the evidence that the track had been used for both residential and agricultural purposes (including with vehicles) since at least 1976, if not before. He held that the barn and the farmhouse had each separately retained the full benefit of the right of way over the track when the title was severed, including for residential purposes. Accordingly, even though the barn had not been used as a residence prior to 1988 or 1989, it had enjoyed an established prescriptive right of way for residential purposes before the council wrote to the Applicants in 2000.  

Whilst this conclusion meant that issues as to use by force or with permission did not arise (so as potentially to defeat the applicants’ claim), the adjudicator also considered whether the applicants would have acquired a right of way based on their user since 1989 – in case his conclusion about the acquisition of their right prior to this was incorrect.  

The adjudicator rejected the council’s argument that its correspondence to the applicants concerning their use of the track constituted permission; he noted that the correspondence merely offered to provide a personal licence and did not purport to grant an immediate licence or permission. He added that a landowner cannot prevent a use from being “as of right” merely by offering to grant a personal licence, particularly where the party using the access refuses to accept the need for permission.

The adjudicator also disagreed that the applicants’ request to be granted a “formal easement” prevented their use from continuing “as of right”, particularly bearing in mind the context of the correspondence in which the request had been made. The adjudicator noted that the terms of the request indicated that the applicants considered themselves to have the benefit of an established prescriptive easement and that the purpose of their request was merely to accept the council’s offer of a formal document to record the existence of that established easement.    

On the issue of use by force, the adjudicator noted that case law required the respondent council “to contest and to endeavour to interrupt the user”. The adjudicator noted that, whilst the council’s correspondence had challenged the applicants’ claim to an easement, it had not asked the applicants to stop using the track with vehicles and it had stated on more than one occasion that nothing would be done to interfere with the applicants’ use of the track. Whilst the adjudicator understood the council’s reluctance to take active steps to prevent such use, he felt that it should have taken action to enforce its view that the applicants were trespassers – at least to the extent of bringing injunction proceedings or installing a lockable gate so as to prevent vehicular access. The adjudicator therefore found that the council had failed to render the continued use of the track “contentious” since it had only formally contested the use and it had not endeavoured to interrupt it.  

The adjudicator concluded that the register should note a right of way over the track for the benefit of the barn, with or without vehicles, and for all purposes.

Emma Humphreys is a partner at Charles Russell. She can be contacted on 020 7203 5326 or by This email address is being protected from spambots. You need JavaScript enabled to view it..

See also: Easy does it – Emma's report on another easement case, this time involving a local authority’s car park.